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Governing the Ungovernable?

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Governing the Ungovernable? Virtual Spaces & Virtual Layers – Governing the Ungovernable? Online multi-user platforms like World of Warcraft and Twitter have one common regulatory mechanism; the End User License Agreement. This document forms the cornerstone of the regulatory system within each of these spaces. Yet it is regularly contravened by users and providers alike. These agreements are very often the only forms of control or regulation that are present in online environments and therefore control more than user behaviour. Yet these platforms also share another feature: virtual disputes, but these are no longer confined online. Threats of violence and other criminal offences arise too, with examples including the abuse issued to Criado-Perez, and more recently, Flipovic. Criado-Perez suffered Twitter abuse and Flipovic was victimised on online message boards. Cyberspace was once deemed to be free from governmental control but the increasing disputes suggest there is now a need to consider how users of spaces such as online games, virtual worlds and social media are protected. Is it fair and practical to leave regulation to EULAs? How do users achieve redress for wrongs – through online and in-site governance mechanisms or wider controls? This work will consider some of these issues, and will suggest that there is now a need for additional layers of regulation to fill the ‘responsibility gap’ left between EULAs and the offline legal mechanisms. Introduction Virtual worlds, online social media sites, virtual communities and even MMORPGs1 have had a chequered past, experiencing exponential growth in user numbers and subscriber bases. Facebook has truly global reach, with an estimated 1.23 billion worldwide users engaging with, or using the site regularly. 2 This alone, in the opinion of Kiss is one way in which the Internet (and our uses of it) have been rapidly transformed – we are longer merely using the Internet, we are part of it, and our interactions contribute to it.3 Facebook is however, only one example of one platform – there are a multitude of others, offering slightly different versions of a similar experience or similar service. Twitter for example, it is estimated, has over 400 million users, and sees over 500 million tweets per day. 4 This is not the only example of an online platform with mass user numbers – World of Warcraft, the most popular 1 Massively Multiplayer Online Role Playing Games; hereafter MMORPGs. 2 J Kiss, ‘Facebook’s 10th Birthday: from college dorm to 1.23 billion users.’ The Guardian (4 February 2014) <http://www.theguardian.com/technology/2014/feb/04/facebook-10-years-mark- zuckerberg> accessed 4 September 2015. 3 E Reuveni, ‘On Virtual Worlds: Copyright and Contract Law At the Dawn of the Virtual Age’ [2007] 82 Indiana L J 261, 264; Garlick M, ‘Player, Pirate or Conducer? A Consideration of the Rights of Online Gamers’ (2004-2005) Yale Jou of Law & Tech 424. 4 R Holt, ‘Twitter in Numbers.’ The Telegraph (21 March 2013) <http://www.telegraph.co.uk/technology/twitter/9945505/Twitter-in-numbers.html> accessed 4 September 2015. online game in history peaked at 12 million subscribers. 5 Whilst this is just a very small sample of some of the leading online platforms, these figures indicate that there is a very high level of interactivity across a number of platforms. Whilst the Internet and cyberspace was once deemed to be free from governmental control and claims of governmental sovereignty, 6 is there now a need to consider how users of spaces such as online games, virtual worlds and social media are protected? Is it fair and practical to leave regulation to EULAs? How do users achieve justice – through in-world and in-site governance mechanisms or wider controls? This paper will consider the current regulatory mechanisms operating across online platforms including social media sites and online gaming platforms, and question, in light of some prescient examples, whether the current forms of control are suited to allowing users to enjoy their online interactions whilst also ensuring that there are adequate provisions to allow disputes to be resolved in the interests of all of the parties concerned. Whilst this development of ‘new’ forms of interaction has blossomed to the extent that Ofcom reports 50% of our time is now spent online, 7 these changes in our social behaviours also present a number of challenges, not only in terms of our changing social realities, but also in terms of new forms of potentially deviant and undesirable behaviour arising through interactions with these online platforms. Of course, within any discussion of online platforms, especially ones dealing with control and governance, there are questions of the division between the online or virtual, and the offline or real.8 Similarly, issues of conflict of laws and jurisdictional competence arise, particularly when discussing online spaces. Again this work acknowledges that such discussions do arise, but does not engage with those aspects here. Virtual Spaces In a wide variety of online spaces, there are a wide variety of potential behaviours and activities which users can engage in. This is, in part, dependent upon the particular space – for example, in certain games, it is acceptable to seek to rape and pillage,9 whereas on Facebook or other social media sites, remarks or content connected to 5 Blizzard Entertainment, ‘World of Warcraft subscriber base reaches 12 million worldwide.’ Blizzard Entertainment Press Release (7 October 2010) <http://us.blizzard.com/en- us/company/press/pressreleases.html?101007> accessed 4 September 2015. 6 J P Barlow ‘Declaration of the Independence of Cyberspace’ EFF (8 February 1996) <https://projects.eff.org/~barlow/Declaration-Final.html> accessed 4 September 2015. 7 Ofcom ‘Consumers spend almost half of their waking hours using media and communications.’ (2010) <http://media.ofcom.org.uk/2010/08/19/consumers-spend-almost-half-of-their-waking-hours- using- media-and-communications/> accessed 4 September 2015. 8 For example, virtual communities, as identified by B Anderson, Imagined Communities: Reflections on the Origin and spread of Nationalism (Verso 1983), T Edensor, National Identities and Popular Culture (OUP 2001). But see further: D Bell, An Introduction to Cybercultures (Routledge, 2001); and F Weinreich, ‘Establishing a point of view towards virtual communities.’ (1997) 3(2) Computer- Mediated Communication <http://www.december.com/cmc/mag/1997/feb/wein.html> accessed 4 September 2015. 9 For example ‘Sociolotron’ is an adult sex game; M Whitty and G Young, ‘Rape, pillage, murder and all manner of ills: Are there some possibilities for action that should not be permissible even within gamespace?’ in K Poels & S Malliet (eds) Moral Issues in Digital Game Play, ACCO Academic (2012) 2. such behaviours would be incredibly controversial and problematic, as Twitter Trolls have recently discovered.10 It should also be noted that the situation is not always straightforward in terms of what is and is not acceptable – particularly in a gaming context. 11 It is also the situation that creating and sharing content through online platforms can be problematic – especially given the troubled private copying exception,12 introduced in October 2014, only to be overturned by the High Court in June 2015. 13 Similarly, the Amazon Reviews sections are an online space, and potentially also an online community controlled by a specific set of rules. 14 These are not the only examples however – Mumsnet, fan fic sites,15 Comment Is Free on the Guardian website are all also examples of online spaces in which users contribute, connect and interact. In a sense each of these spaces are controlled by guidelines written or unwritten, and create cyber communities, highlighted by Bowrey who suggests that there are, ‘different kinds of communities and associated cultures that intersect with the layers of self-regulation, voluntary schemes, co-regulation, legislation, and international agreements.’16 In a sense therefore, online spaces, and their associated interactions provide not only challenges to the traditional paradigms of governance and control, but also highlight the changing nature of interactions. Similarly, ‘property’ disputes – be it intellectual property or digital property – are increasingly more prevalent and predictable, yet the legal responses to them are far from predictable in the light of the private copying exception fiasco. Decisions such as that in the Google Books litigation,17 or the Second Life Linden Labs class action18 have been handed down and indicate the significance of digital properties and their host spaces. This has seemingly been recognised by the judiciary but the legal system itself has yet to adapt to such developments. Regulation is currently non-platform-specific, and relies in an online context almost exclusively on contractual agreements. This current approach means that there are gaps in the system of control – be it in the contractual agreements or in terms of the regulation of behaviours within these platforms. It is possible that there are also gaps in responsibility, which exacerbates the lack of governance and control in these online platforms. Who for example, is responsible in the current paradigm where the EULA does not deal with the dispute raised? What recourse would a wronged user have in such a situation? The next layer following the EULA under the current paradigm is usually to resort to the offline legal provisions, however, the user is then constrained by applicable law clauses in the EULAs, meaning that the chance of resolving a 10 R v Nimmo; R v Sorley (2014) (unreported) <https://www.judiciary.gov.uk/wp- content/uploads/JCO/Documents/Judgments/r-v-nimmo-and-sorley.pdf> accessed 4 September 2015. 11 See for example: M Luck, ‘The Gamer’s Dilemma: An Analysis of the arguments for the moral distinction between virtual murder and virtual paedophilia’ Ethics and Information Technology 11 (1):31-36 (2009).
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